Concentration of Power – Are Medical Regulators Autocratic?

Many docs say they’d rather be sued than face a college complaint; at least they could defend themselves.

Faced with reprimand by the College, lawyers advise doctors to bow their heads and accept punishment.

If docs refuse, a mark will be put in their file. Things will go worse next time.

The College of Physicians and Surgeons of Ontario (CPSO) reports that several thousand doctors help out doing peer reviews of other doctors. This implies, as the College presents it, that many docs must love the College.

But maybe docs help out because they want peer review to be educational, not punitive? Maybe it has nothing to do with loving the College?

The CPSO also notes that most complaints are not serious. Despite the ulcers and lost sleep caused by a complaint, the majority resolve without event.

Furthermore, the CPSO says it is bound by draconian legislation and driven by activist media outlets. It’s not their fault.

Even so, most doctors cower in fear of the CPSO. Six doctors commit suicide each year in Canada while under investigation by their regulator, with no prior history of mental illness.

In my last blog, Is Self-Regulation Dead?, some readers asked for more about the concentration of power.

If there is no “self” in self-regulation, then all that’s left is an autocratic body with power to create laws, enforce laws and punish lawbreakers.

Concentration of Power

Dictators get things done. Journalist Lincoln Steffens visited the Soviet Union in 1919 and said,

I have seen the future and it works.”

He believed that it “…was a temporary condition of evil, which is made tolerable by hope and a plan.”

Justin Trudeau expresseda level of admiration” for the Chinese government “…because their basic dictatorship is allowing them to actually turn their economy around on a dime.

Trudeau also praised Fidel Castro as a “remarkable” and “larger than life leader who served his people” .

Western democracies grew from a different root. The writers of the British North America Act knew that they were not just creating a country. They were preventing autocracy, which can lead to tyranny.

They wanted to immunize Canada against the concentration of power.

Canada was built to prevent power falling to any individual or group.  The founders cared more about tyranny than efficiency. They built a complicated political system, not something clean and neat. They did this with intention.

The founders held a firm belief that mankind is frail and imperfect.

After a few thousand years of failed political experiments, the founders knew that men are prone to error. Feminists wonder why it took men so long to figure it out.

The Separation of Powers Doctrine

The best guarantee against tyranny is to build a system that prevents the concentration of power. This is called the separation of powers doctrine.

Thus, we have three branches that govern at the federal level:

  1. The legislative branch writes laws: the House of Commons and Senate.
  2. The executive branch, also known as The Government, looks after: national defence, foreign affairs, banking, the post office, etc. The Government is made up of the ruling party: The Prime Minister, the Cabinet and the Governor General.
  3. The judicial branch interprets and applies laws through the court system. 

The Supreme Court calls the doctrine one of the “essential features of the constitution.” No one, and no single group, can be trusted to act in a fair and just manner all the time.

Are Medical Regulators Autocratic?

If self-regulation is dead, the the College holds all the power. Many say that the college has held all the power for years; might as well have it in the open.

Fear of tyranny makes doctors do strange things. They order tests to cover themselves.

Doctors spend time writing clinical notes to please regulators, not adding value to patient care.

This takes time away from patients. It makes care more expensive and less efficient. It puts patients at risk with unnecessary tests.

Medical regulation is one of the biggest cost drivers of malpractice insurance.

Lawsuits are brutal. But when doctors prefer lawsuits to college complaints, something is wrong.

Government needs to address the concentration of power currently held by the College. This problem is not new. Will the next government have the courage to fix it?

Photo credit: bokbluster.com

 

 

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38 Replies to “Concentration of Power – Are Medical Regulators Autocratic?”

  1. “Lawsuits are brutal. But when doctors prefer lawsuits to college complaints, something is wrong.”

    This corroborates what I have been saying for decades: I would give up Self Regulation in a nanosecond for the same rights that other Canadians have in a court of law.

    1. You and many others, Gerry! I wish someone would start paying attention.

      It’s as though doctors complaining gets interpreted as the College must be doing a good job. They are so tough on crime that doctors hate them. But this assumes that most doctors are criminals. If most docs are good people, and those people are complaining about oppression, then good government should listen.

      Thanks so much for reading and sharing a comment!

  2. All due respect, I think you’ve misdiagnosed the problem with the College. The problem isn’t that the College has too much power, but rather that it failed in its primary function of protecting the public from the sociopaths in our midst, and as a consequence has now become a de facto enforcement agency of the province. Witness the MRC audits from the 2000s; Bill 87’s subjugation of the College to Ministry direction; and the present (misguided) obsession with opioid prescribers. The Ministry literally dumped dozens upon dozens of otherwise competent MD names in the laps of CPSO investigators, despite the fact that the overdose epidemic is due to illicit, not prescribed, fentanyl.

    Don’t get me wrong, the College excels at making life miserable for doctors. As an organization, it’s a first-class bully, and has really outdone itself with its latest piece of propaganda, that cutesy whiteboard YouTube video generously paid for with member dues. It also has a glorious habit of inventing new bureaucratic hoops to licensing, to ensure that doctors despise every single interaction with it. And – confession – I kinda admire the College’s crazy overcompensation for its own shortcomings, printing a magazine with more lurid stories of sexual misadventures than the Letters page of a Larry Flint publication.

    The College doesn’t need more or less power. It needs a redefined purpose and mandate, or it needs to be done away with for any purpose beyond basic registration.

    I believe you’ve also mistaken the setup of the Canadian government with the American one. Canada was established as a colony of the British empire, subjects of the Crown. The division-of-powers is an American obsession, based on ancient Rome and (to a lesser extent) Athens.

    1. Thanks Frank! Great comments.

      I agree that the college hasn’t been able to catch the sociopaths. I don’t believe that any process could, with 100% certainty. CPSO presenters loves to talk about Drs. Shipman, Patel and other serial killers around the world. But hard cases make bad laws, as they say. Who’s to know if tighter regulations will every catch the sociopaths?

      We can’t trust increased regulation to fix problems that were never caused by a lack of regulation in the first place.

      I agree with your comments about the CPSO needing a redefined purpose. I agree with your suggestion that it should just be about basic registration. I guess I am calling that a decrease or limitation of the power it currently holds, but I’m using different words to express it.

      I appreciate you pushing back on the separation of powers. I did quite a bit of research on this, and it’s been a favourite topic of mine for a few years now. The Separation of Powers doctrine is definitely a core in American politics, as you say. There are many links to it, so I won’t paste any here. However, it is also a core concept in our constitutional system, too. That’s why I linked to our Supreme Court rulings on constitutional law. There is debate that the executive and legislative branches are too closely entwined in Canada. But if nothing else, it demonstrates that this is a concern and fundamental presupposition of good governance for Western constitutional government. So, I stand firmly on the position that Canada, in its own way, rests on the principle of the separation of powers doctrine.

      Again, thanks so much for taking time to share such thoughtful comments!

      Cheers

      Shawn

    2. Dr. Warsh,

      I have been telling my colleagues that we have to get rid of the College for last ten years! The College, being a self-regulating body, is very immune to changes, and really autocratic. I explained to my colleagues that being regulated by the Ministry of Health will ensure a change every 4 years by electing a new government. But doctors are cowards, not willing to vote the College out. I wonder what would happen to Colleges assets, do they belong to them or to doctors who allowed them to get millions of dollars in long and short term accounts. Doctors in BC are paying 17 million in fees to the College per year. Our College moved from a small house on West 10th avenue and purchased 5 floors on downtown Howe Street in Vancouver, 67,000 square feet, most of it is rented out. It has to be done away with.

  3. Endogenous vs exogenous locus of control.

    Endogenous leads to growth.

    Exogenous leads to conflict and failure. This is a post-industrial revolution technique to increase productivity in factory workers. This is also common in our hospital organizations.

    There are “critical incidents and near misses” that demand correction (often with the help of lawyers and the CPSO), not “good catches” that are debriefed with adjustments made by everyone involved.

    The work environment becomes toxic. I know a hospital just like this.

    “The carrot and stick are pervasive and persuasive motivators, but if you treat people like donkeys they will perform like donkeys. “ John Whitmore

    1. Ha — Great quote, Clay!

      “The carrot and stick are pervasive and persuasive motivators, but if you treat people like donkeys they will perform like donkeys. “ John Whitmore

      We can’t improve performance by increased beatings. Or as the T-shirt says, “Beatings will continue until morale improves.”

      There must be a better way.

      Thanks again!

    2. I wanted to highlight that point about endogenous vs exogenous control, ie autonomy, and locus of control. Management theories in ascendance (often called new managerialism) have heightened that idea of exogenous control. Medical colleges started with the principle that each individual had endogenous control, that was the heart of having professionhood. I hope for a world where each human being has as much endogenous control (freedom, autonomy) as possible. However, we are in a world where there is more exogenous control. Our business theories have a constant surveillance approach. Our administrative bodies have picked up on these theories. For a medical college, it would be difficult to support professionhood, with endogenous control, intrinsic motivation, internal locus of control, while buying into business models of management (lean, 360, constant review) that have as a theoretical foundation exogenous control, extrinsic motivation, external locus of control. Foucault talked about this, and many others. The thing is, if I remember correctly, most studies on such things say that a person’s integrity and ability to show up for others is more tied to intrinisic motivation and internal locus of control. ethics rely on endogenous control. happiness relies on intrinsic locus of control. anxiety and depression is related to exogenous locus of control. There is unfortunately a mismatch with the foundational ideology not only in colleges, but also in ‘physician leadership’ (such as the recent whitepaper), and in healthcare ‘systems design’. The foundational ideology in business theories of management, in this area of control, is a fundamental mismatch with professionhood. There are some serious consequences.

        1. Thanks Siobhan!

          I really appreciate you sharing this link and your comment above that. I agree, new managerialism has changed the way public organizations think they should run. We all would do well to read more about it. I’ve tried to use this term more when I chat with other stakeholders in the system. Like so many things, once we identify something that’s impacting our profession, it’s much easier to figure out how to improve it.

          Thanks again!

  4. Once again Shawn I commend you for having the firmness of will to tackle this issue.

    First, I believe medical regulation is necessary. It adds credence to our profession and helps distinguish us as a group of individuals worthy of our keep.

    If the College was doing its job, there would be no problem. But, it has become anti-doctor.

    Why? When you take months to investigate frivolous complaints that put into question a doctor’s livelihood, you do immeasurable harm.

    When you think you have the right to tell your fellow man that he must participate in the death of another, you have a committed a crime against humanity.

    If not the OMA, then who is going to defend a doctor’s rights? The College must be held accountable.

    1. Thanks Nick.

      I deleted one phrase from your note. This post is purely to spark discussion. I always try to be provocative to pull out opinions so that we can discuss what might otherwise go unsaid. This post is not an official position, nor does it signal policy. We need much more work from a larger group of people before we start forming official positions.

      Doctors find regulation to be one of the the most (if not THE most) stressful aspects of practicing medicine. It should not be this way.

      Thanks so much for taking time to share a comment!

      1. I understand. I appreciate that you provide a platform for members like me to voice my opinion and you take the time to respond. My opinions are my own, that of a free-thinking man who need not be too diplomatic, and I will endeavour to make myself clear on where I stand from the veil of partial anonymity as I do not wish to incur the wrath of those who might harm me. This poisonous fear is precisely the fear engendered by the College and it is this I fight against.

        1. I my last letter to our College I wrote :
          As much as I do not like to tackle a rattle snake with a bare foot, I need to tell you ….
          And I did.
          I was an anatomic pathologist, when I started my medical carrier, and my colleagues tought me that nobody can do anything to me except putting the knife from my right hand to my left hand.

  5. I like where you are going either the last two posts. I am sure that you will have the support of Physicians with this line in thinking. We look forward to the appropriate organization insisting on change which cannot come soon enough!

    1. Thanks Greg,

      This is a huge issue for doctors. The CPSO is in a time of change. Self-regulation is going through massive changes worldwide. We need to be discussing this issue right now.

      I sure appreciate you reading and sharing a comment!

  6. Nick
    Please understand AND BE CAUTIOUS. At present you do not enjoy the same limits to “Freedom of Expression” as other citizens: Not if you are a licensed physician!
    We simply do not yet know what the CPSO will tolerate as the new limits to this fundamental freedom, this because the College has not yet defined it’s policy beyond the adjective “respectful”.
    If you have been paying attention you will have noted that a large number of colleagues were recently sanctioned by the CPSO for comment made in 2016 during the debate about a collective agreement, an agreeent which was subsequently rejected. Those members have been subjected to both public humiliation and healthy doses of enforced “Maoist re-education theory” , notwithstanding that no one broke a single law.
    And, most importantly, that NOT A SINGLE PATIENT WAS HARMED DURING AN ADMITTEDLY POLARIZED DISCUSSION.

    1. Thank you Anonymous,

      As one of the most upstanding, honourable and thoughtful docs I’ve worked with over the last few decades, it breaks my heart to read your anonymous post. Something is fundamentally broken when we become so scared that we cannot even have discussions in the open.

      I believe that we can improve things. We do not have any other option. Improvement starts with communication. I hope that those who read these comments understand that they all come from a deep desire to see things get better.

      Thanks again for taking time to post a comment and sage advice!

      Best regards,

  7. The CPSO is definitely an unneeded and unwarranted stress on every physician. It long ago abandoned the high minded guarantor of the quality of the medical profession for the role as government stooge to harass hard working docs. The change of stance would not have occurred if the people who run for and populate the ‘college’ were regular working docs and not the academic or management retreads looking for a cozy extension of their careers. I think that re-engineering the college should include the evacuation of the entrenched socialist anti-doctor elites that currently make up the ‘membership’. I put ‘membership’ in quotations because ordinary docs are in no way members because we have no say over the policies of the ‘college’. It is not a college it is bureaucratic autocracy. I think an ideal college would have members drawn at random to serve a year or so and then return to regular practice. I think that no doctor who is not currently in practice should be eligible to serve.

    1. Very interesting ideas about appointing members at random to serve! Brilliant actually. And I like your idea of making sure that everyone who serves is still in active practice.

      Thanks so much for sharing this, Ernest!

    2. I think the mechanism you propose here is better than the current mechanism and I am an advocate of yours but I remain troubled by the following consideration.

      Till now we have been ‘self’ -regulated and I think many will concede by virtue of the way the way the College has governed itself that we have caused our-‘self’ undue harm.

      Herein rests the hypocrisy.

      Let me illustrate by way of an extreme example.

      If doctor ‘X’ sits on the CPSO investigative committee and does Dr. ‘Y’ harm by investigating what turns out to be a frivolous complaint, what then is to stop Dr. ‘X’ from moving on to Physician Help Program at the OMA and proposing to help Dr. ‘Y’ in their time fo mental anguish?

      Can we then trust our-‘selves’?

      Who are we?

      Are there boundaries between us and them?

      Here we have this pandemic of physician burnout and at least in part we acknowledge doing it to our ‘selves’, can we turn then to our-‘selves’ for help?

      I’m asking who are we?

      If none can answer clearly, then at least give one the right to believe in whom they think themselves to be.

  8. To Clarify, in a court of law you are entitled to trial by a panel of your peers. College service would be akin to jury duty.

  9. I used to read the College proceedings when I first graduated to understand what kind of medical errors occurred and how to make sure that I never did the same thing. However, for the last 2 decades all I read is how dr A had sex with pt B. I learn nothing. But what is never in the publication is how they are harassing every doctor they can find over petty incidents and making them suffer for years. If 6 suicides happened in a year in Canada over this kind of Inquisition then it is time that it stopped. These are people that cared about their patients, families and loved ones. This kind of harassment needs to stop. The college should check our credentials. The law courts cover everything else. Time for a revolution!

  10. From what I have seen, the CMPA does an excellent job and therefore it is very difficult to remove so-called “sociopaths”. (Are they really sociopaths or were they, as the Stanford Prison Experiment suggests, simply vulnerable doctors turned into sociopaths by the system)? Enormous unnecessary harm is done to injured patients and their families because the lawyers for the CMPA can outwit and outplay the lawyers for the CPSO. (And they certainly can outlast injured patients with their scorched earth tactics). If/when lies, deceit and falsified medical records are identified by multiple complainants, making the CMPA’s defence very difficult, the doctor is then protected by legislation which protects the mentally ill and patients’ complaints cannot go to discipline. I think both the CPSO and the tort system need to be replaced. A jury made up of peers and the public with a common goal to create a safe, just system is needed. One more suicide is one too many. One more injured patient or family with further psychological and financial injury from the lies, deceit and falsified medical records is one too many. Healing is needed. You won’t print this, and that’s okay.

    1. Your last comment gives you away. You have no trust in the integrity or intellect of your peers. From your comments you seem to have some skin in the game so maybe best to come from that angle and declare your interest. I post my name and I am not scared. I want to protect my colleagues from unnecessary harassment. And I will do whatever I can to help them. Did you know that there is a female physician in Ontario that was pregnant and was physically attacked by a patient who still complained about her and the process went on for years? This is most definitely an abuse of power. We can all quote examples of MDs that have gone off the tracks. What the discussion is about is the attacks on MD s with trivial complaints and the college abusing their power to deal with this.

  11. Where is no patient harm, the complain should be dropped right then and there. Complains about the doctor’s day off, doctor outfit, doctor’s secretary, doctor being late while juggling 10 issues with the elderly in the next room, should be dropped and discouraged. If there is incompetence or harm, it should be dealt with according to protocol. The cpso micromanagement has gone to such extreme, that with time, it will be absolutely impossible for the college itself, to deal with millions of complains of a growing and more entitled population, in a fast paced society.

    1. No link or reference. This was shared with me in conversation by someone who works at the CMPA. 250 MDs commit suicide each year in Canada and 6 of them seem to be largely connected to investigation. Furthermore, the stress of an investigation is well known at the CPSO and openly discussed. It doesn’t need to be this way.

    1. ‘Beware that when fighting monsters, you yourself do not become a monster…for when you gaze long into the abyss, the abyss gazes also into you’.
      Nietzsche

  12. Shawn,

    It is great to know that there is someone other than me who is not afraid to tackle a rattle snake with a bare foot.

    1. Thanks Etela,

      If we can start an open conversation, I think we can improve things for everyone: patients, doctors and the whole system.

  13. Etela Neumann et al
    Fear is palpable in Ontario, therefore not living.

    CPSO apparently endorses chest compression’s only specific to respiratory failure. cf slide 23 https://www.cpso.on.ca/uploadedFiles/members/Meth-conf-POINT-PP.pdf

    My letter ‘Flaws in Toronto’s Opioid Overdose Prevention Program’ EMN 2015; 37(12):31 With hyperlinks to Public Health Ontario’s training literature
    http://journals.lww.com/em-news/Fulltext/2015/12000/Letter__Flaws_in_Toronto_s_Opioid_Overdose.14.aspx

    Quote my professor “Gary humans have evolved into house plants, therefore hypercapnia is a very good thing” A bundle of laughs.

  14. The scariest revelation as to the mindset of CPSO “judges” started to occur last year…if you recall, rulings of reprimand or punishment started being finalized with bizarre , separate, decrees of wrongdoing, large paragraphs written in the tone and language of 18th century witch trials with a Kafkaesque spin…it was so bizarre it seemed at the end a decree demanding flogging, whipping or a walk down Yonge St naked with rotten fruit being thrown at the perpetrator would be required to let the public know the Exhalted CPSO had made a ruling. Then they just disappeared with no explanation for their arrival or disappearance I am aware of. It just seemed to represent a mindset that validated all doctors fears of the college. Hard to believe intelligent people came up with the idea. The culture of the CPSO had its curtain pulled back for a brief period…then the Wizard pulled it back maybe hoping no one saw it?…

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